Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  In 2002, the Americans did not look upon these assaults and others as “torture” under the federal law as generously construed by compliant attorneys in the Bush Justice Department’s Office of Legal Counsel. Since the office is responsible for interpreting the law to guide government agencies, the memos of interpretation carried weight as a shield against the prosecution of American interrogators, a kind of immunity in advance—although the documents suggest that the CIA tortured first, then later asked for legal approval, which was obligingly provided.

  The lawyers’ lengthy rationalizations, contained in a series of memos made public by the Obama administration,29 recorded with detached precision the limits of the permitted “techniques” as described by the CIA: Sleep deprivation could last no more than eleven days, later reduced to 180 hours, and would be halted if it caused hallucinations. The prisoner could be shackled either seated on a stool or standing with wrists attached to the ceiling, the chains just long enough to keep the hands “between the level of his heart and his chin.” Should he doze off and hang by his arms, “he will lose his balance and awaken.” The temperature would have to be at least sixty-eight degrees for him to be kept naked, except for an adult diaper, which would be changed, frequently and considerately, to avoid rash. Nudity could not involve sexual degradation, the lawyers wrote, yet they gave no sign of recognizing the degradation implicit in their approval for female officers to see detainees unclothed.

  “Walling” had to be done with a towel or collar around the neck to prevent whiplash, a method suggested by the Israelis, Mayer was told by a CIA official. The towel was used to pull the prisoner forward, then smash his shoulder blades against a wall that was supposed to be false, designed to create a loud sound rather than injury. Interviewed by the International Committee of the Red Cross, Khalid Sheikh Mohammed said that he was first thrown against a concrete wall, then put into a box. When he was let out, a piece of plywood had been erected in front of the concrete—the false wall, apparently, to satisfy the rules.

  Bland liquid nourishment, usually Ensure, could be given at a minimum of 1,000 calories daily, which exceeded many weight-loss programs, one memo noted. The limited diet would be supplemented if the prisoner’s weight dropped by more than 10 percent.

  In “water dousing,” the water that was poured or splashed on the prisoner had to be potable, the room had to be above sixty-four degrees, a mat or poncho had to be placed between the prisoner and the floor to avoid loss of body heat, and the water temperature determined the “total duration of exposure,” which could not exceed two-thirds the time that submersion at that temperature would cause hypothermia.

  A “facial slap or insult slap” required the fingers to be slightly spread while “the hand makes contact with the area directly between the tip of the individual’s chin and the bottom of the corresponding earlobe.” An “abdominal slap” was administered with the back of an open hand. “The interrogator must have no rings or other jewelry on his hand.”

  Three different stress positions were specified. Time limits were imposed for stuffing a prisoner into a cramped box, depending on the size: two hours for small, eight hours for large. He could be informed that a stinging insect would accompany him inside, as long as nothing more harmful than a caterpillar was actually inserted, and he wasn’t told that the bug would cause severe pain or death. The technique was never used, according to a footnote.

  Waterboarding, which was imposed on three of the captives, had to be done with a saline solution to avoid diluting the sodium in a prisoner’s blood if he swallowed a large amount. Water could be poured onto the cloth for only twenty to forty seconds, then three or four breaths would be allowed, then another twenty to forty seconds, and so on for up to twenty minutes at a time in a two-hour session. There could be two such sessions in each twenty-four-hour period and five such days within each thirty-day period. A physician would have to be standing by to intervene if necessary. Mohammed said that a device attached to his finger was checked frequently—probably measuring his blood oxygen level.

  Indeed, the constant presence of doctors and psychologists was presented by the Justice Department memos as evidence of civilized precaution, when in fact it violated medical oaths and professional ethics by giving cover to brutality. The CIA had invented a novel paradox: a form of clinically humane torture.

  The word “torture” is vivid and vague. It conjures up assaults that were not approved and presumably not used: no fingernails pulled, no electrodes applied, no rack or thumbscrew or dismemberment. Yet if its core meaning is upheld, it surely encompasses the more sophisticated modern methods of teaching helplessness through suffering. None of this was “torture” under federal law, according to the lawyers who manufactured a definition so extreme that the routine abuse being directed against terrorism suspects would be legal.

  The law wasn’t exacting, and lawyers who were looking for wiggle room found some. Torture was defined by the federal statute as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control” (emphasis added). The law went on to define severe mental pain or suffering as “the prolonged mental harm [emphasis added] caused by” various actions including “the threat of imminent death” and “procedures calculated to disrupt profoundly the senses or personality.”30 Perhaps Congress meant to exclude some unpleasant behavior, but it is not specified.

  The two fudge words in the statute were “severe” and “prolonged,” which gave the pro-abuse lawyers the flexibility to play with the meaning of “torture.” To rise to the level of “severe,” they wrote in their memo, pain would have to be as intense as that “accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” To be considered “prolonged,” psychological harm must be “of significant duration, e.g., lasting for months or even years.… The criminal statute penalizes only the most egregious conduct,” according to the August 1, 2002, memo by John Yoo and Jay S. Bybee (who later became a federal judge). Both standards were made up; they had no basis in law or precedent.

  The CIA methods wouldn’t cause “severe physical suffering,” because the times during which they were applied were so short, the memos said. And while waterboarding was “likely to create panic in the form of an acute instinctual fear arising from the physiological sensation of drowning,” this was “distress,” not “suffering,” the lawyers concluded. “Physical distress may amount to ‘severe physical suffering’ only if it is severe both in intensity and duration.”

  The word “Orwellian” has been overused to describe the Bush administration’s euphemisms and circumlocutions, but it has no adequate synonym to characterize the Yoo and Bybee memo, especially this statement: “The waterboard could not be said to inflict severe suffering. The waterboard is simply a controlled acute episode, lacking the connotation of a protracted period of time generally given to suffering.”

  In an interview, Yoo blamed the “very narrow statute,” which his office merely interpreted. “The law tells you what the boundaries of legal conduct are,” he explained patiently. “It’s up to the policymakers to choose where in those boundaries” policy should be located, a lawyerly way of washing his hands. He favored the “class of conduct that is not torture, but is called cruel and degrading treatment,” and he clearly shaped his legal interpretation to permit it. “I think in this conflict, because of its unconventional nature, we cannot as a society rule those kinds of things out of bounds, especially when there’s no statute, there’s no congressional view that these things are illegal.”

  In a disquieting style of sweet reason, Yoo spoke about brutal issues with clinical calmness. He gave no indication of knowing that days of sleep deprivation and perpetual interrogation, called “conveyor” in Russian, were used to manufacture the phony confessions of the Stalinist show trials
of the 1930s.31 He gave no hint of knowing that waterboarding had been introduced into the arsenal of torture by the Spanish Inquisition, prosecuted in war-crimes trials of Japanese following World War II, used by the Chinese against Americans, and employed by the Pol Pot regime in Cambodia. A similar method had been inflicted on black prisoners forced to labor in Southern mines and factories during the early twentieth century.32 He seemed unaware that his own Justice Department, two decades before, had won convictions of a Texas sheriff and three deputies for waterboarding prisoners.33

  Given the propensities of Yoo and other Bush lawyers, it was left to the Democratic-dominated Congress to try to close that imagined loophole, in February 2008, by amending the laws to prohibit waterboarding explicitly. But the bill didn’t pass.34 Under the memos’ legal reasoning, therefore, confessions extracted by waterboarding could have been admitted into evidence by military judges conducting trials of noncitizens, even those arrested and interrogated inside the United States, who had been designated “unlawful enemy combatants.”35

  That risk to people inside the country was not well understood in the debate surrounding torture. While the discussion focused on detainees in Guantánamo Bay and elsewhere outside the United States, the interlocking pieces of the law and its interpretations allowed the president to label anyone anywhere, whether in Afghanistan or Alabama, as an enemy combatant and then, if an alien, to bring him before a military commission whose rules would allow confessions extracted by the CIA’s abusive methods, because they were not defined as “torture.”

  This was made possible by the combination of the lawyers’ memos and the Military Commissions Act of 2006, which excluded confessions and witnesses’ statements elicited by “torture,” but added that those “in which the degree of coercion is disputed” could be ruled admissible if the interrogation occurred before December 2005. A military judge needed to find only that “the totality of the circumstances renders the statement reliable … and the interests of justice would best be served by admission of the statement into evidence.”

  Interrogations conducted after 2005, when restrictions were imposed by the Detainee Treatment Act, were admissible only if they avoided “cruel, inhuman, or degrading treatment,” the rule drawn verbatim from the Convention Against Torture.36 Yet here, too, the Justice Department lawyers thought that the CIA techniques complied with that standard. The permissive interpretations were withdrawn toward the end of the Bush administration, but if they had prevailed, evidence obtained by torture—which was defined as neither “torture” nor “cruel, inhuman, or degrading”—could have been heard by military commissions trying enemy combatants seized and abused inside the United States.37 The powers were not employed, but a legal gateway was opened for torture to infiltrate the country. It was nearly closed in 2009 by a revised Military Commissions Act that excluded statements extracted by such methods but still admitted information obtained by coercion during capture or combat.

  Torture entered the United States most directly following the arrest on May 8, 2002, of an American named Jose Padilla, who was picked up at Chicago’s O’Hare Airport after returning from Zurich. He had become a suspect during the interrogation of Abu Zubaydah, a personnel clerk in an al-Qaeda training camp,38 who named Padilla as a plotter to disperse radioactivity by setting off a “dirty bomb.”39

  Padilla had converted to Islam in prison, where he had done time for murder as a juvenile and then for gun possession as an adult in Florida. Upon release he lived in Egypt and visited Saudi Arabia, Pakistan, and Afghanistan, where he allegedly took instruction in an al-Qaeda camp the year before 9/11.

  When he tried to come home, he was seized in Chicago, moved to New York, held in a civilian jail as a material witness, and assigned a lawyer. One month later, without notice to his attorney, Padilla was spirited out of prison to the navy brig in Charleston, South Carolina, under a one-page order by President Bush designating him an enemy combatant, “based on the information available to me from all sources,” according to the censored version of the document.40 The “sources” were later identified as Zubaydah and at least one other captive whose information was made dubious by the interrogation methods. Yet the authorities never provided specific evidence to justify Bush’s move to imprison him indefinitely without charge or trial. Padilla went one year and eight months in military custody without being allowed to see a lawyer, and for three years and eight months he was kept in isolation before finally being transferred to the civilian court system, a shift essentially forced by court decisions in other enemy-combatant cases.41

  In the Charleston brig, his attorney told the court, military interrogators warned Padilla that they would send him abroad or to Guantánamo Bay. Guards manipulated him into a sense of powerlessness by unpredictably providing and then withdrawing a mirror, a pillow, and a sheet; by keeping him in glaring lights, then in darkness; by locking him in a cold cell without a shower for weeks; by allowing him to exercise only at night.

  “He was threatened with being cut with a knife and having alcohol poured on the wounds,” according to his lawyer’s brief. “He was also threatened with imminent execution. He was hooded and forced to stand in stress positions for long durations of time. He was forced to endure exceedingly long interrogation sessions, without adequate sleep, wherein he would be confronted with false information, scenarios, and documents to further disorient him. Often he had to endure multiple interrogators who would scream, shake, and otherwise assault Mr. Padilla. Additionally, Mr. Padilla was given drugs against his will, believed to be some form of lysergic acid diethylamide (LSD) or phencyclidine (PCP), to act as a sort of truth serum during his interrogations.”42 (If it happened, the drugging violated even the Justice Department’s permissive guidelines.)

  This abuse produced various statements about supposed schemes alongside the alleged dirty-bomb plot, most notably a plan to “undertake a mission to blow up apartment buildings in the United States using natural gas,” a Senate committee was told by Deputy Attorney General James Comey. Padilla was said to have admitted to (or boasted of) conspiring with Khalid Sheikh Mohammed and other al-Qaeda leaders.43

  The truth of these revelations was impossible to determine, since they came out of duress. Their accuracy went untested in any adversarial proceeding and remained unverified by corroborating evidence. No lawyer was permitted to monitor the questioning, and when Padilla’s attorney Andrew Patel was finally allowed to see him, he was instructed by the military not to ask Padilla about the conditions he faced in the brig, a telling restriction on attorney-client communication.

  Denying Padilla a lawyer was a deliberate method of instilling a sense of vulnerability, explained the head of the Defense Intelligence Agency, Vice Admiral Lowell E. Jacoby. “Anything that threatens the perceived dependency and trust between the subject and interrogator directly threatens the value of interrogation as an intelligence gathering tool,” Jacoby said. “Even seemingly minor interruptions can have profound psychological impacts on the delicate subject-interrogator relationship. Any insertion of counsel into the subject-interrogator relationship, for example—even if only for a limited duration or for a specific purpose—can undo months of work and may permanently shut down the interrogation process.”44 This sounded logical, but the method facilitated the type of abusive setting opposed by the most seasoned interrogators.

  It had been during the initial, humane phase of questioning that Zubaydah mentioned Padilla’s dirty-bomb plot, according to one of his initial interrogators, Ali Soufan of the FBI. By treating his wounds, inquiring into his worldviews, and lending him a measure of dignity, Soufan said he had gotten Zubaydah to identify Khalid Sheikh Mohammed as the 9/11 organizer and to provide the tip that led to Padilla’s arrest. When the CIA began subjecting Zubaydah to waterboarding and other abuse, Soufan objected, and the FBI withdrew its interrogators in protest.45

  In the end, the torture of Zubaydah and Padilla contaminated everything that had been learned, depriving the gov
ernment of the most serious charges, which faded away as Padilla was transferred to the civilian justice system. Had Padilla admitted to the gravest plots without coercion, and had the humane interrogation of Zubaydah continued in compliance with the Fifth Amendment, all the statements could have been put into evidence. Instead, the tainted information had to be stripped away to a core of “clean” evidence, which amounted to nothing more than Padilla’s presence at a training camp. Although the plan for a dirty bomb had been certified by a Defense Department official’s affidavit, and foiling the plot had been advertised by Attorney General John Ashcroft as a victory for counterterrorism, it quietly vanished from the charge sheet.46 So did the idea of blowing up apartment buildings. Neither appeared in the criminal indictment. The stain of torture could not be scrubbed away.

  So Padilla and several others faced trial on the watered-down charge of belonging to a cell that conspired to commit murder overseas. The prosecution presented as its main exhibit his application to an al-Qaeda training camp. The jury convicted him, the government urged life in prison, but the judge gave him only seventeen years and four months, citing his “harsh” imprisonment in the brig and noting that “there is no evidence that [Padilla] personally killed, maimed, or kidnapped.” The government appealed to the Eleventh Circut, where a panel, voting 2–1, ordered the judge to lengthen the sentence.47 Without the torture, he might have gone away for life. Humane interrogations have a long record of success, suggesting that he might have talked anyway. Or, if not, investigators would have been forced to investigate, nail down the facts, and prove his guilt—if he was actually guilty. Once again, torture was a substitute for hard investigation.